James Harrison v. Cabinet for Health and Family Services ( 2022 )

RENDERED: JUNE 17, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1531-MR
JAMES HARRISON APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 20-CI-00525
CABINET FOR HEALTH AND
FAMILY SERVICES; DAVID T.
LOVELY; JANE DOE, AS
CUSTODIAN OF RECORDS; JENNA
DAVIS; JOHN DOE, AS CUSTODIAN
OF RECORDS; AND WESLEY DUKE APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
ACREE, JUDGE: James Harrison appeals the Franklin Circuit Court’s August 10,
2020 opinion and order dismissing as moot his petition against the Cabinet for
Health and Family Services (CHFS) to enforce an Attorney General’s Open
Records Act opinion in his favor. The case was dismissed after the circuit court
found CHFS had provided the requested record. We affirm.
BACKGROUND
James Harrison is an inmate at Green River Correctional Complex,
operated by the Department of Corrections (DOC). He began his time in prison in
relatively good health but, in 2016, he began having respiratory problems requiring
medication. Four years later, inmates began contracting COVID-19.
Harrison was transferred to a new cell dormitory and was told he
needed to be held there for fourteen days.1 During segregation, DOC medical
personnel did not provide Harrison with his respiratory medication or a mask, nor
did they enable Harrison to connect to his nebulizer.
Harrison was concerned medical agents were not following lawful
protocols. He pursued an Open Records request with CHFS for a record
describing the protocols. CHFS denied the request pursuant to KRS 197.025.2
Dissatisfied with the response, Harrison appealed to the Attorney
General. CHFS defended by stating it interpreted the request “to be one for inmate
1
Harrison says in his brief there were eleven cell blocks that had inmates who tested positive for
COVID-19.
2
KRS 197.025(2) states, the Department of Corrections “shall not be required to comply with a
request for any record from any inmate confined in a jail or any facility or any individual on
active supervision under the jurisdiction of the department, unless the request is for a record
which contains a specific reference to that individual.”
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records” and by claiming the DOC is the proper authority to respond to a request
for DOC-specific guidance. On June 4, 2020, the Office of the Attorney General
issued 20-ORD-083, In re: James Harrison/Cabinet for Health and Family
Services. In its opinion, the Attorney General decided CHFS did have at least one
non-exempt record responsive to his request; therefore, when it refused to produce
the record, CHFS violated the Open Records Act.
Harrison sought to enforce the Attorney General opinion by
petitioning the circuit court for: (1) an order requiring CHFS to respond and
provide the requested record; (2) a copy of the Green River Correctional
Complex’s mail registry to prove the requested record was not sent; and (3) a
finding he was prejudiced and substantially harmed by the CHFS failing to
produce the records. CHFS presented evidence it had already provided the record
in compliance with the Attorney General opinion and moved to dismiss the action
as moot. The circuit court was persuaded by the evidence and granted the motion.
This appeal followed.
STANDARD OF REVIEW
As an appellate court, we review the trial court’s granting of a motion
to dismiss de novo. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010).
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ANALYSIS
Harrison argues the Franklin Circuit Court erred by not holding CHFS
to their burden under KRS 61.882. Harrison cites the wrong statute.
KRS 61.882(3) states:
In an appeal of an Attorney General’s decision, where the
appeal is properly filed pursuant to KRS 61.880(5)(a), the
court shall determine the matter de novo. In an original
action or an appeal of an Attorney General’s decision,
where the appeal is properly filed pursuant to KRS
61.880(5)(a), the burden of proof shall be on the public
agency. The court on its own motion, or on motion of
either of the parties, may view the records in controversy
in camera before reaching a decision. Any noncompliance
with the order of the court may be punished as contempt
of court.
Harrison is not appealing the Attorney General’s opinion. Instead, he is seeking to
enforce it. He wants a finding consistent with 20-ORD-083; therefore, the
applicable authority is KRS 61.880(5)(b).
If an appeal is not filed within the thirty (30) day time
limit, the Attorney General’s decision shall have the force
and effect of law and shall be enforceable in the Circuit
Court of the county where the public agency has its
principal place of business or the Circuit Court of the
county where the public record is maintained.
Id.Regardless, the circuit court found CHFS provided evidence that it
mailed the appropriate document to Harrison on June 8, 2020. Therefore, there
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was nothing for the circuit court to order or enforce. Harrison’s action was moot
as there was no case or controversy to decide.
CONCLUSION
Based on the foregoing, the Franklin Circuit Court’s August 10, 2020
order dismissing Harrison’s action is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
James Harrison, pro se Jenna Davis
Central City, Kentucky Frankfort, Kentucky
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